The NewStandard ceased publishing on April 27, 2007.

Environmentalists See Promise, Peril in New EPA Regulations

by Michelle Chen

New rules released by the EPA aim to cut utility industry emissions of three major pollutants over the next couple of decades, but environmentalists say the plans are wrongheaded and inadequate.

Mar. 16, 2005 – The Environmental Protection Agency (EPA) in the past week introduced two major initiatives to curb industrial emissions of some air pollutants: the Clean Air Interstate Rule, announced last Thursday, and the Clean Air Mercury Rule, announced yesterday. The declarations follow a contentious deadlock in the Senate Environment and Public Works Committee over the Bush administration’s Clear Skies bill, which environmental groups assailed as an industry-friendly rollback on the landmark Clean Air Act of 1970. The EPA rules contain many of the regulatory features of Clear Skies but lack many of the controversial policy changes in the failed bill.

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Both the Clean Air Interstate Rule (CAIR) and the Clean Air Mercury Rule (CAMR), provide a political and economic infrastructure as well as a timetable for reducing emissions of major pollutants generated by the utilities industry. Watchdog groups say the new rules affirm the scope of the Agency’s regulatory authority under the Clean Air Act. But they nevertheless caution that, like Clear Skies, the rules respond inadequately to worsening environmental problems and still reflect the Bush administration’s agenda of prioritizing corporate interests over environmental health.

John Walke, director of the Clean Air Program at the Natural Resources Defense Council (NRDC), referred to the Interstate Rule as a "a mixed story," marred by "the Agency’s refusal to require greater pollution reductions sooner from power plants."

The environmentalist community skeptically welcomed the rules as more rational than Clear Skies but weaker than the Clean Air Act.

CAIR will restrict the emissions produced by utility plants in twenty-eight Eastern-most states and Washington, DC. The EPA projects that the two-phase plan will reduce smog and acid rain by cutting sulfur-dioxide (SO2) emissions by 70 percent and nitrogen-oxide (NOx) emissions by 65 percent when fully implemented, though it is uncertain when exactly this stage will be reached.

The parallel mercury rule will cap coal-based power plant emissions of mercury, a potent neurotoxin that impacts the neurological development of children who are exposed in the womb. According to the proposal, the rule will reduce annual emissions by 69 percent in two phases, with a more stringent cap implemented in 2018.

Collectively, the rules target approximately 1,000 coal-burning utilities plants nationwide, which, according to EPA estimates, produce roughly 60 percent of the nation’s SO2 emissions, 20 percent of NOx emissions, and 40 percent of mercury emissions, among other pollutants.

The environmentalist community has skeptically welcomed the rules as more rational than Clear Skies but weaker than the mandate of the Clean Air Act. John Stanton, senior counsel for the national environmental organization Clear the Air (CTA), commented, "There is nothing that would prohibit EPA from making these rules far more stringent than they currently are," yet the agency has instead taken a "half-hearted approach" to fulfilling its responsibility to address air pollution.

Many environmental groups oppose the trading of mercury emissions on principle.

For instance, environmentalists project that the stricter mercury provisions of the Clean Air Act would achieve greater reductions in a shorter timeframe than the EPA’s plan. Sierra Club spokesperson Nat Mund sees the new mercury rule’s preemption of existing Clean Air Act requirements as "a way of weakening the law without going through Congress."

Critics Say Cap-and-Trade Gambles With Public Health

Much of the cynicism surrounding CAMR and CAIR centers on the market-based "cap-and-trade" system that will govern both clean-up measures. Under the EPA’s scheme, companies negotiate reductions among themselves and enjoy flexibility in complying with clean-up timetables. The EPA has claimed that this system is more efficient and realistic because it "harnesses the incentives of the free market to reduce pollution."

But many environmental advocates are skeptical about relying on market forces to improve air quality. Stanton noted that because any polluter with enough financial backing can purchase emissions "allowances," the regulations "will allow higher pollution levels for longer." Since the EPA permits the "banking" of allowances, Stanton explained, the system invites procrastination. CTA predicts that polluters will use up their allowances so slowly that CAIR’s 2015 emissions reduction goals will not actually be achieved until 2022.

Many environmental groups -- including those that support emissions trading in general -- oppose the trading of highly toxic mercury emissions on principle.

"We do not think it is in society’s interest to have a robust marketplace in fetal poisons," commented Stanton.

CAIR seen as positive step on shaky ground

Auditors found that EPA administrators deliberately distorted calculations to make the “revised” standards under the trading plan seem more “cost-effective” than the original guidelines in the Clean Air Act.

In publicizing CAIR, the EPA has emphasized that the emissions reductions achieved under the rule will prevent approximately 17,000 premature deaths and yield up to $101 billion in public health benefits. Environmentalists, on the other hand, tend to see the glass half empty.

The Sierra Club contends that, if properly implemented, existing Clean Air Act programs would lead to improved air quality: by 2010, NOx emissions would be reduced to 1.25 million tons annually and by 2012, SO2 emissions would decrease to 2 million tons per year. The caps established by CAIR are more lenient, at 1.5 and 3.6 respectively.

In a recent report on nationwide air pollution, CTA found that although overall industrial emissions of SO2 and NOx have decreased since 1995, pollution is growing steadily worse in certain areas, as many of the "dirtiest" plants actually increased their emissions from 1995 to 2003 in local communities. The CTA report cited inadequate caps, along with emissions trading schemes that allow for the uneven distribution of pollution, as major threats to environmental and public health in communities surrounding the heaviest polluting plants.

The problem will only intensify, say environmentalists, unless the EPA shows greater willingness to depart from the Bush administration’s interest in shielding polluters from regulation, by imposing stricter, more comprehensive caps on pollution.

Walke of the NRDC said that the new policies allow the power plants that account for a large portion of the country’s air pollution to shirk their "fair share" of the clean-up effort. Walke worries that as power plants wriggle out of their responsibilities, states will have no choice but to impose "less cost-effective" controls on other pollution sources in order to comply with air quality standards.

"If you put CAIR in a vacuum," said Mund, "then it wouldn’t be enough." However, from his organization’s perspective, CAIR is far preferable to the parallel Clear Skies provisions that would have weakened the Clean Air Act by relaxing oversight systems and pushing back deadlines for air-pollution guidelines known as the National Ambient Air Quality Standards.

Mund said that despite CAIR’s shortcomings in working toward Clean Air Act goals, it at least maintains the integrity of the law and "leaves the opportunity in place that we can still reach those benchmarks."

Watchdogs say EPA dilutes mercury standards

Just as CAIR cannot be deemed an unqualified success story, environmentalists say, the new mercury rule is not the regulatory breakthrough the EPA claims it is.

The rule is in fact long overdue, notes the National Resources Defense Council, which, during the Clinton administration, headed a lawsuit against the EPA for failing to enforce Clean Air Act provisions on mercury regulation. The EPA’s initiative meets the exact deadline for establishing such a rule, which is mandated by a federal consent decree. The NRDC suspects supporters of Clear Skies tried to move the legislation forward before the March 15 deadline, fearing the EPA rules would render superfluous the more environmentally friendly incentives tucked into the bill.

Environmentalists argue that the mercury rule is not only too late, but also too little. A 2004 study by the Centers for Disease Control found that approximately six percent of women of childbearing age exhibited unsafe blood levels of mercury, a condition that could interfere with fetal and child development, and the EPA has calculated that "more than 300,000 newborns each year may have increased risk of learning disabilities" related to mercury exposure while in the womb.

According to the EPA, current emissions-control technologies in coal-fired power plants allow about two-thirds of mercury released in coal-processing -- about 50 tons -- to escape into the atmosphere; surpassing any other human source in the country.

Mercury in the environment contaminates the human food chain primarily through the consumption of fish, which absorb the toxin from the water. In light of this hazard, scientists, elected officials and advocacy groups have expressed concern that the Bush administration’s emissions-trading plan -- promoted in both Clear Skies and the EPA rule -- is a flawed substitute for the Clean Air Act’s more rigid mercury controls, which require the "maximum achievable" emissions reductions.

Environmental groups and officials have charged that in evaluating different mercury control options, the EPA manipulated its methodology to yield a more favorable cost-benefit analysis of the cap-and-trade proposal.

According to a January report released by the EPA Inspector General’s Office, EPA administrators deliberately distorted calculations to make the "revised" standards under the trading plan seem more "cost-effective" than the original guidelines in the Clean Air Act. The Government Accountability Office issued a similar report last month, criticizing the EPA for failing to offer an objective assessment and thus "limiting the transparency and usefulness of the analysis."

Moreover, Clear the Air contends that while the EPA takes credit for addressing mercury, it is ignoring the dozens of other pollutants generated by power plants, including lead and arsenic. The Clean Air Act, stated the group in a recent report, obligates the EPA to "control each and every one of those pollutants to the maximum extent possible."

Stanton concluded that while "the mercury rule is an example of the EPA using its rulemaking authority… it’s also an example of EPA dropping the ball and just being irresponsible when it comes to protecting public health."

New Rules, Same Game

Some environmental groups believe the EPA’s numerous efforts to roll back the Clean Air Act overshadow the environmental benefits of the new rules. They point out, for instance, that the agency has cooperated intently with the Bush administration’s attempts to undermine the Clean Air Act’s New Source Review provisions, which require companies to incorporate pollution-control technologies when building or expanding their facilities. The EPA’s recent attempts to "revise" these standards "by eliminating perverse regulatory barriers" have prompted environmental organizations to block the overhaul through litigation.

Walke said that even the relatively progressive CAIR and CAMR rules smack of White House coercion, referring to the administration’s attempts to "put handcuffs around EPA" by directing its policies. The former director of the EPA’s Office of Regulatory Enforcement, Eric Schaeffer, cited this pattern of influence in a Washington Monthly commentary following his resignation in 2002. He accused the administration of "crippling the EPA's ability to enforce laws and regulations already on the books."

Nevertheless, environmentalists say that for all their shortcomings, the new EPA rules do present one major benefit: they set, in Walke’s words, "a new baseline" for appropriate enforcement of the Clean Air Act, in effect raising the bar for future legislative action on environmental policy.

But for now, environmental groups are hesitant to pursue more stringent pollution policies through legislation, taking their narrow defeat of Clear Skies as an indicator that any attempt to legislate environmental standards could open a Pandora’s Box in the Republican-dominated Congress. "Our desire at this point is not to legislate," reflected Stanton. "It’s to have EPA use the authority that it already has to protect public health."

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The NewStandard ceased publishing on April 27, 2007.

Michelle Chen is a staff journalist.

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